This report describes the results of the OIG's review of the FBI's implementation of the Attorney General's Investigative Guidelines issued on May 30, 2002. Four sets of Attorney General Guidelines were revised at that time:

The Attorney General's Guidelines Regarding the Use of Confidential Informants (CI or Confidential Informant Guidelines);

The provisions of these four sets of Attorney General Guidelines are mandatory.11

The objectives of our review were to 1) assess the FBI's compliance with these critical controls, and 2) evaluate the methods and procedures used by the FBI to ensure that the revised Guidelines were properly put into practice.

To place this review in context, it is important to recognize that the FBI operates under legal constraints in addition to the Guidelines, such as:

Executive Orders and Presidential Decision Directives that establish various law enforcement and intelligence priorities and objectives, such as anti-terrorism initiatives issued before and after the attacks of September 11, 2001; and

policy, administrative, and operational pronouncements issued by the Attorney General, the FBI Director, and the Department of Justice (DOJ) and the FBI, including Attorney General Directives, the FBI's Manual of Investigative Operations and Guidelines (MIOG), and the FBI's Manual of Administrative Operations and Procedures (MAOP).

We focused this review on compliance with the Attorney General Guidelines, rather than on these other legal constraints, for several reasons.

First, the Investigative Guidelines govern most aspects of an FBI agent's day-to-day authority to investigate federal crimes and to conduct criminal intelligence investigations.12

Second, these were the first Attorney General Guidelines issued after the September 11, 2001, terrorist attacks. When they were issued, the Attorney General and the FBI Director underscored that the revisions were necessary to remove bureaucratic obstacles to the ability of field agents and their supervisors to address terrorist threats, while at the same time guide the day-to-day activities of key federal law enforcement agencies within constitutional and other legal constraints.

Third, the revised Guidelines give the FBI broader authorities in connection with its efforts to detect and prevent terrorism and to investigate other criminal activity. For example, the May 2002 Investigative Guidelines authorize the FBI to:

conduct preliminary inquiries and full investigations for longer periods prior to obtaining authority to renew them, and use mail covers during preliminary inquiries;13

use undercover techniques during criminal intelligence investigations (racketeering enterprise and terrorism enterprise investigations), not only in general crimes investigations;

visit public places and attend public events on the same terms as members of the public for the purpose of detecting or preventing terrorist activities, without the predication required to investigate leads or conduct a preliminary inquiry or full investigation;

perform general topical research in support of its investigative activities; and

conduct online searches and access online sites and forums on the same terms as members of the public for the purpose of detecting or preventing terrorism or other criminal activities.

In addition, the Guidelines were revised to state that "the FBI shall not hesitate to use any lawful techniques consistent with these Guidelines, even if intrusive, where the intrusiveness is warranted in light of the seriousness of a crime or the strength of the information indicating its commission or potential future commission," particularly in conducting counterterrorism investigations.14

With respect to the FBI's use of confidential informants, the most significant recent revisions of the Confidential Informant Guidelines occurred in January 2001, when the version immediately preceding the May 2002 revisions was issued. We believe it is important to evaluate how the FBI's authorities regarding confidential informants are being utilized.

Fourth, the passage of three years since issuance of the May 2002 Guidelines has given the FBI a reasonable period within which to implement the revisions and a meaningful period by which to measure compliance and assess the implementation process.

Fifth, the May 2002 revised Guidelines were adopted without customary congressional consultation.

Sixth, this is the first comprehensive review of the FBI's implementation of the May 2002 Investigative Guidelines.15 While the FBI Director, the Attorney General, and other officials of the DOJ have responded to several congressional inquiries about the implementation of certain provisions of the May 2002 Guidelines and the FBI's use of some of its new authorities, this OIG review is the first detailed review of the steps the FBI has taken to implement the Guidelines.

We also recognized that our review was conducted during a period of fundamental organizational change within the FBI, the DOJ, other federal law enforcement agencies, and the United States intelligence community in response to the attacks of September 11, 2001.16 Since late 2001, the FBI has been implementing major changes in its focus and organization, beginning with the December 2001 announcement of the reorganization of its executive management, followed by the May 2002 realignment of FBI resources from traditional criminal investigations to counterterrorism and counterintelligence, the development of greater analytical capabilities, and the institution of a targeted hiring program to fill acknowledged gaps. In June 2004, the FBI Director initiated the process for establishing an intelligence directorate within the FBI. These reforms have been accompanied by significant legal and operational changes in the relationships and information-sharing authorities between the law enforcement and intelligence communities, most notably through the passage of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, known as the USA PATRIOT Act.17

The FBI's work in implementing the Investigative Guidelines has also occurred at the same time as other operational and administrative changes affecting the Headquarters and senior field managers who share responsibility with the FBI's 12,000 agents to comply with the Guidelines. During our review, for example, FBI Headquarters' oversight of the Criminal Informant Program moved from the Criminal Investigative Division (CID) to the new Directorate of Intelligence, where all human sources are now supervised in accordance with a Presidential Decision Directive.

During the course of this review, the FBI has addressed some of the concerns identified in this report and is in the process of addressing others. In addition, further revisions of the Investigative Guidelines are under consideration by DOJ and the FBI, including a major overhaul of the various Guidelines used to operate human sources. We believe that the lessons learned from this review of the implementation process employed following the May 2002 revisions of the Investigative Guidelines will be useful whenever the next round of revisions is considered, drafted, issued, and implemented.

Scope and Methodology of the OIG Review

Scope of the Review

Our review examined the FBI's compliance with the four Attorney General Investigative Guidelines that were revised on May 30, 2002, and the procedures that the FBI relied upon to ensure their proper implementation. Because the Investigative Guidelines govern a broad array of investigative activity, we limited the scope of our compliance review to a number of key provisions in each of the Guidelines.18

The revised Guidelines address the FBI's utilization of general crimes investigations to investigate various federal crimes and criminal enterprises, as well as the FBI's use of three key methods or techniques used to conduct general crimes or criminal intelligence investigations:

the use of Confidential Informants - individuals who are used by the FBI to obtain information or to perform certain activities in furtherance of FBI criminal or intelligence investigations, with or without compensation, under the supervision of FBI case agents and their supervisors;

the use of Undercover Operations - defined as "investigative activities involving the use of an assumed name or cover identity by an FBI employee or other law enforcement agency working with the FBI which involves an element of deception, the purpose of which is to detect, prevent, and prosecute certain federal offenses;"19 and

the use of Non-telephonic Consensual Monitoring - the consensual monitoring of non-telephonic communications.

In addition to the FBI's compliance performance under each of the four Investigative Guidelines, we examined the steps the FBI has taken since May 2002 to implement the Guidelines, including its planning for implementation, distribution and communication of the Guidelines and related guidance, formal and informal training on the Guidelines, and administrative support provided by FBI Headquarters and the field divisions.

We also examined the operation of the two joint FBI-DOJ committees that review and approve certain types of confidential informants and undercover operations. Those committees are the Confidential Informant Review Committee (CIRC) and the Criminal Undercover Operations Review Committee (CUORC). In addition, we examined the role of FBI components that monitor compliance with some of the Guidelines, including the Undercover and Sensitive Operations Unit (USOU), the Asset/Informant Unit (A/IU),20 the Office of the General Counsel (OGC), the Inspection Division, and the FBI's Office of Professional Responsibility (OPR).

Our review also examined, to a limited extent, internal FBI operational changes in the fall of 2003 that shifted Headquarters' oversight of certain counterterrorism investigations from CID to the Counterterrorism Division (CTD), and the corresponding internal guidance that shifted the applicable Attorney General Guidelines governing those investigations from the General Crimes Guidelines to the Attorney General Guidelines on FBI National Security Investigations and Foreign Intelligence Collection (NSI Guidelines), which were revised on October 31, 2003.

We did not include within our review the FBI's implementation of the NSI Guidelines. However, as discussed in various recommendations offered throughout this report, because similar operational and administrative challenges are attendant to implementation of the NSI Guidelines, we believe the principles we outline for promoting more effective compliance with the Investigative Guidelines may also apply to implementation of the NSI Guidelines.

Following the September 11, 2001, attacks, the Attorney General ordered a top-to-bottom review of the Guidelines "to ensure that they provide front-line field agents with the legal authority they need to protect the American people from future terrorist attacks."21 When the revised Guidelines were announced in May 2002, the Attorney General stated that the driving force behind the changes was the belief that "the [investigative] guidelines bar FBI field agents from taking the initiative to detect and prevent future terrorist acts unless the FBI learns of possible criminal activity from external sources."22

Because the Attorney General identified the primary focus of the May 2002 revisions as the prevention and detection of terrorism, our review also sought to determine how the FBI has used the new or expanded authorities and the internal control mechanisms that exist to monitor the exercise of these authorities. For example, we assessed the FBI's implementation of the new (or newly clarified) authorities to visit public places and attend public events, which are set forth in Part VI of the General Crimes Guidelines.

It is also important to identify several significant internal controls that we did not examine. The FBI and other DOJ law enforcement agencies operate under other Attorney General Guidelines that are beyond the scope of this review. These include the NSI Guidelines mentioned above; Online Investigative Principles for Federal Law Enforcement Agents (for Undercover Operations) (1999); the Attorney General Guidelines for Extraterritorial FBI Operations and Criminal Investigations; the Attorney General Guidelines on the Development and Operation of FBI Criminal Informants and Cooperative Witnesses in Extraterritorial Jurisdictions; the Attorney General Guidelines for Victim and Witness Assistance (2000); and the Attorney General's Directives Regarding Information Sharing Under the USA PATRIOT Act (2002). With limited exceptions, this review also did not examine the FBI's compliance with its internal operational mandates that supplement the requirements of the Investigative Guidelines, principally the FBI's MIOG and the MAOP.23

In addition, this review did not examine the FBI's compliance with its expanded authorities under the USA PATRIOT Act, including its investigation of international terrorism matters that are now principally governed by the NSI Guidelines. We did, however, seek to determine if there is any operational overlap between the Investigative Guidelines and the NSI Guidelines and, if so, whether there are any gaps or confusion in the field as to which Guidelines apply, what the Guidelines mean, and which FBI Headquarters Division is responsible for supervising the exercise of these authorities. Finally, our review did not examine whether the FBI has been successful in utilizing its new and expanded authorities in accordance with any internal performance measures, standards, or goals that align with the FBI's stated priorities.

Methodology of the Review

Our review proceeded in five general phases, some of which overlapped. The first phase consisted of background interviews of key program managers at FBI Headquarters, along with a review of the guidance memoranda and other initial communications by FBI Headquarters to field personnel about the revised Guidelines.

The second phase consisted of over 40 interviews of FBI Headquarters and DOJ personnel who oversee key aspects of the substantive programs governed by the Guidelines; members of the FBI's Office of the General Counsel, which provides periodic guidance and legal advice to the field and conducts training on the Guidelines; senior FBI and DOJ personnel who serve on the joint committees that administer certain aspects of the Guidelines relating to confidential informants and undercover operations; and FBI officials who head the Inspection Division and FBI OPR - each of which plays an important role in promoting adherence to, and monitoring compliance with, the Investigative Guidelines. During this phase of our review, we examined over 1,000 documents generated by the FBI and the DOJ in the course of implementing and monitoring compliance with the revised Guidelines.

During the third phase, we conducted web-based surveys of three groups of FBI agents in the FBI's 56 field offices who play a key role in promoting adherence to the Investigative Guidelines: Criminal Informant Coordinators, Undercover Coordinators, and Chief Division Counsel/Assistant Division Counsel (collectively referred to as Division Counsel) who serve as chief legal advisors in the field. We also administered a fourth survey to Criminal Division Chiefs of the 93 U.S. Attorneys' Offices that focused on the Guidelines' provisions requiring routine approval or concurrence by, or notification of, U.S. Attorneys' Offices.

The fourth phase consisted of 12 field office site visits during which we reviewed a judgmental sample of FBI investigative and administrative files reflecting use of the Guidelines' authorities during the period May 2002 to May 2004.24 These files reflected investigations of domestic terrorism, international terrorism (prior to September 2003, when the FBI made an internal operational change shifting the Guidelines applicable to these cases to the Attorney General's Guidelines for National Security Investigations and Foreign Counterintelligence Collection), organized crime, public corruption, narcotics trafficking, and health care fraud. We reviewed cases falling into the category of general crimes investigations as well as criminal intelligence investigations, which includes racketeering enterprise and terrorism enterprise investigations. We examined cases that were in the preliminary inquiry phase as well as full investigations. We also examined field office practices with respect to utilization of the new authorities set forth in Part VI of the General Crimes Guidelines ("Counterterrorism Activities and Other Authorizations"), pursuant to which the FBI is now explicitly authorized to visit public places and attend public events for the purpose of detecting or preventing terrorist activities. In each instance, we examined whether the available documentation showed that key provisions of the four sets of Guidelines were followed. Following our field office site visits, we conducted interviews of the senior managers of each of those field offices - the Special Agents in Charge (SACs).

During the fifth and final phase of the review, after collecting and assimilating the data we collected from FBI Headquarters and the 12 field offices and the other documents produced by the FBI and DOJ, we interviewed several newly appointed senior FBI Headquarters officials and in some cases re-interviewed other senior officials about organizational and other plans that would impact Headquarters and field supervision of the programs governed by the Guidelines. We also interviewed the FBI Director in April 2005.

Organization of the Report

This report is organized into nine chapters, beginning with this Introduction. Chapter Two recounts the historical background of the Attorney General Guidelines. It discusses the initial versions of the Guidelines and events that prompted revisions of the different sets of Guidelines.

Chapter Three focuses on the Confidential Informant Guidelines. It addresses the background of the May 2002 revisions, the role of confidential informants in FBI investigations, and the benefits and risks of using confidential informants. We then summarize the major revisions to the Guidelines and report the findings of our field office site visits and the significant data collected from our surveys of Confidential Informant Coordinators, FBI Division Counsel, and the Criminal Division Chiefs of the U.S. Attorneys' Offices. We provide our compliance findings - including our observations on how the different aspects of the FBI's implementation process affected compliance outcomes - and provide our recommendations.

Chapter Four examines the revised Undercover Guidelines. It addresses the use of the undercover technique in FBI investigations, the benefits and risks of undercover operations, and the major revisions made to the May 2002 Guidelines. We then report the findings of our field office site visits and the significant data collected from our surveys of FBI Undercover Coordinators, FBI Division Counsel, and the Criminal Division Chiefs of the U.S. Attorneys' Offices. We also present our compliance findings and recommendations.

Chapter Five addresses the revised General Crimes Guidelines and the FBI's use of general crimes and criminal intelligence investigations. After summarizing the major revisions to the Guidelines, we report the findings of our field office site visits and the data collected from our surveys of FBI Division Counsel and the Criminal Division Chiefs of the U.S. Attorneys' Offices. We also analyze the FBI's utilization of its new authority to visit public places and attend public events for the purpose of detecting and preventing terrorist activities contained in Part VI of the General Crimes Guidelines under the heading, "Counterterrorism Activities and Other Authorization." We then provide our analysis of our compliance findings, followed by our recommendations.

Chapter Six focuses on the revised Consensual Monitoring Guidelines. It summarizes the revisions to the Guidelines and reports the findings of our field office site visits, together with data collected from our surveys of FBI Division Counsel and the Criminal Division Chiefs of the U.S. Attorneys' Offices. We also present our compliance findings and recommendations.

Chapter Seven discusses the mechanisms employed by FBI Headquarters to ensure compliance with the Guidelines. These include the operation of the two joint FBI-DOJ oversight committees that review, approve, and monitor certain types of undercover operations and confidential informants: the Criminal Undercover Operations Review Committee (CUORC) and the Confidential Informant Review Committee (CIRC). It also includes inspections conducted of FBI field offices by the Inspection Division every three years; on-site reviews of undercover operations conducted by USOU; and the reinspections of the Criminal Informant Program conducted by CID's Asset/Informant Unit (A/IU) (a function transferred in November 2004 to the Human Intelligence Unit within the Field Intelligence Management Section of the Intelligence Directorate), and the FBI's disciplinary process. The chapter provides our analysis of the effectiveness of each of these functions.

Chapter Eight describes the implementation process employed by the FBI with respect to the May 2002 revisions, including its planning for implementation, its distribution and communication of the Guidelines and related guidance, formal and informal training on the Guidelines, and administrative support provided by FBI Headquarters and the field divisions, including measures used to promote accountability and compliance with the Guidelines. We provide analysis of how the FBI's decisions on each of these aspects of the implementation process impacted Guideline compliance and conclude with our recommendations.

Chapter Nine contains our conclusions. The appendices to the report provide organization charts of the FBI and the DOJ; the text of the four Investigative Guidelines; a table illustrating the May 2002 revisions to the Investigative Guidelines; a table showing the views of USAO Criminal Division Chiefs on the adequacy of FBI coordination on Confidential Informant Guidelines issues; a list of the recommendations that appear at the end of Chapters Three through Eight; a table showing discrepancies between the Investigative Guidelines and FBI policy manuals; the FBI's response to the report; and the OIG's analysis and summary of actions needed to close the report.

Footnotes

Throughout this report, we refer to these four sets of Guidelines collectively as the "Guidelines," "Attorney General Guidelines," or "Investigative Guidelines." The May 30, 2002, Guidelines are attached at Appendix B and are available electronically on the web site of the Office of Legal Policy of the Department of Justice at: http://www.usdoj.gov/olp.

Although the Attorney General's May 30, 2002, memorandum entitled, Procedures for Lawful, Warrantless Monitoring of Verbal Communications is not referred to as an Attorney General "Guideline," we included the FBI's compliance with this memorandum in our review. For convenience, we refer to the memorandum as one of the Attorney General's Investigative Guidelines.

See, e.g., § I.A.3 of the CI Guidelines ("These Guidelines are mandatory . . ."); Preamble to GCI Guidelines ("These Guidelines provide guidance for general crimes and criminal intelligence investigations by the FBI. The standards and requirements set forth herein govern the circumstances under which such investigations may be begun, and the permissible scope, duration, subject matters, and objectives of these investigations.").

One FBI Headquarters official referred to the Investigative Guidelines as the "blueprint" or "template" for the FBI's investigative activities, and others referred to the Guidelines as "the Bible."

A mail cover is the recording of any data appearing on the outside cover of any class of mail. MIOG II § 10-6.2.

General Crimes Guidelines, § I at B-68.

In June 2003, David M. Walker, Comptroller General of the United States, testified before a congressional committee that the United States General Accounting Office (GAO) investigators had conducted a preliminary review of the FBI's implementation of the Guidelines and had determined that internal controls were in place to monitor compliance with the Guidelines. Walker stated that neither the FBI nor any of the oversight bodies or private groups had alerted the GAO to any abuses under the Guidelines. See U.S. General Accounting Office, FBI Reorganization: Progress Made in Efforts to Reform, but Major Challenges Continue, GAO-03-759T, 26-32 & App. VI (June 18, 2003).

Both the House and Senate Judiciary Committees have held oversight hearings on different aspects of the revised Investigative Guidelines. With respect to the FBI's use of confidential informants, the House Committee on Government Reform issued a report, Everything Secret Degenerates: The FBI's Use of Murderers as Informants, H.R. Rep. No. 108-414 (2004). The House Committee on Government Reform advised the Attorney General in a letter dated May 6, 2004, that it was undertaking an investigation of the FBI's "handling of confidential informants, including its guidelines, policies and practices."

Organization charts for the DOJ and the FBI are attached at Appendix A.

In addition, on June 29, 2005, the President announced a further restructuring of the intelligence community, the Department of Justice, and the FBI. A new National Security Division will be created in the Department of Justice, under the supervision of an Assistant Attorney General, which will consolidate the Department's intelligence resources within one division. At the FBI, a new senior position directly under the FBI Deputy Director will be created to oversee the FBI's intelligence, counterterrorism, and counterintelligence components, which will be combined to form a National Security Service within the FBI.

However, we collected a significant amount of information on the FBI's implementation practices beyond those key measures. For example, with regard to FBI undercover operations that were reviewed at FBI Headquarters, we evaluated more than 50 separate variables for each undercover operation we examined.

During the period of this review, the FBI's Asset/Informant Unit was in the Criminal Intelligence Section of the CID. Effective November 15, 2004, that unit moved to the Directorate of Intelligence and was renamed the Human Intelligence Unit.

Id.

Remarks of Attorney General Ashcroft, Attorney General Guidelines, May 30, 2002, available at: http://www.usdoj.gov/ag/speeches/2002/53002agpreparedremarks.htm.

One exception was the MIOG requirement that field supervisors review each case agent's investigative files every 90 days. See MIOG § 137-4(3). We considered this to be a critical requirement to promote adherence to the Guidelines, and we included it in our data collection at 12 FBI field offices.

We included in our field office site visits six of the largest FBI field offices: New York, Washington D.C., Los Angeles, Chicago, Miami, and Boston; four medium-sized field offices: Denver, Salt Lake City, Portland, and Buffalo; and two smaller field offices: Columbia, S.C., and Memphis.